Citation Nr: 0827272
Decision Date: 08/13/08 Archive Date: 08/18/08
DOCKET NO. 07-05 395 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Ann L. Kreske, Associate Counsel
INTRODUCTION
The veteran served on active military duty from October 1968
to October 1972.
This appeal to the Board of Veterans' Appeals (Board) is from
a July 2004 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Los Angeles, California.
In its July 2004 rating decision, the RO also denied the
veteran's claims for service connection for bilateral hearing
loss and tinnitus. However, he did not perfect an appeal of
those claims by filing a notice of disagreement (NOD) and
substantive appeal (e.g., VA Form 9 or equivalent statement).
See 38 U.S.C.A. § 7105(a)
(West 2002); 38 C.F.R. § 20.200 (2007). Therefore, those
issues are not before the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Before addressing the merits of the PTSD claim, the Board
finds that additional development of the evidence is
required.
In disability compensation (service-connection) claims,
service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303(a). The establishment of service
connection for PTSD requires (1) medical evidence diagnosing
PTSD in accordance with VA regulations, (2) credible
supporting evidence that the claimed in-service stressor
actually occurred, and (3) medical evidence of a link between
current symptomatology and the claimed in-service stressor.
38 C.F.R. § 3.304(f). See Cohen v. Brown, 10 Vet. App. 128
(1997).
If the veteran did not engage in combat with the enemy, or if
the veteran engaged in combat, but the alleged stressor is
not combat-related, the veteran's lay testimony, by itself,
is not sufficient to establish the occurrence of the alleged
stressor. Instead, the record must contain credible
supporting evidence which corroborates the veteran's
testimony or statements. Cohen, 10 Vet. App. at 147; Moreau
v. Brown,
9 Vet. App. 389, 395 (1996).
The veteran contends that he suffers from PTSD as the result
of two stressors during service in Vietnam. A review of
service personnel records (SPRs) confirms that he served in
Vietnam from September 1970 to September 1971. First, the
veteran states that while serving in Binh Thuy in October
1970, he saw two enemy bodies floating in the Mekong River.
Second, he states that he was exposed to mortar, direct small
arms fire, and rocket attacks sometime during his service in
Vietnam. See PTSD questionnaire dated in April 2004;
psychiatric evaluation report from Dr. R.O. dated in October
2006. As for symptoms of PTSD, the veteran reports
difficulties with sleep, intrusive memories and thoughts of
combat and the war zone, depression, agitation, anger and
rage, as well as being jumpy and easily startled. See
psychiatric evaluation report from Dr. R.O., Ph.D., dated in
October 2006.
Here, a private psychiatric evaluation by Dr. R.O. dated in
October 2006 diagnosed the veteran with PTSD due to the in-
service stressors listed above. However, the Board is not
required to accept an appellant's uncorroborated account of
his active service experiences. Wood, 1 Vet. App. at 192.
Further, Dr. R.O. cannot provide supporting evidence that a
claimed in-service event actually occurred based on a post-
service medical examination. Moreau, 9 Vet. App. at 395-96.
Thus, the remaining question for the non-combat stressors is
whether there is credible supporting evidence that the
alleged in-service stressors actually occurred.
To verify the veteran's in-service stressors, the RO should
contact the U.S. Army and Joint Services Records Research
Center (JSRRC) (previously known as U.S. Armed Services
Center for Unit Records Research (USASCURR)) to request unit
records, naval shore station history records, or additional
information that would verify the veteran's alleged in-
service stressors. In that respect, VA is required to obtain
relevant records held by any Federal department or agency
that the claimant adequately identifies and authorizes VA to
obtain. 38 U.S.C.A. § 5103A(c)(3). The veteran is seeking
service connection for PTSD; however, the RO has made no
attempts to verify the veteran's alleged in-service
stressors, instead finding that the evidence does not include
a verified stressor event in service. The RO should contact
JSRRC and provide them with the veteran's service dates, unit
identification, the names of servicemen involved, and the
approximate dates of the two stressor incidents noted above.
The Board finds that a remand is in order to verify in-
service stressors for PTSD.
The Board adds that even though the veteran has not provided
specific dates for the alleged stressors, it finds that the
veteran has provided sufficient information, when combined
with his SPRs, to allow further research for verification.
Accordingly, the case is REMANDED for the following action:
1. The RO should take appropriate action
to request a search of unit records for
the U.S. Navy, unit comrivpat flotilla 5,
to determine whether that unit came under
rocket/mortar attack while serving in Binh
Thuy during the period of September 1970
to September 1971. The RO should also
request a search of records for reports of
enemy dead bodies sighted in the Mekong
River in October 1970. A copy of the
veteran's SPRs, with his description of
the incidents, should be forwarded to
JSRRC, along with the request.
2. If the RO obtains evidence confirming
that the veteran's unit came under hostile
fire or that the veteran witnessed bodies
of the enemy floating in the Mekong River
during the relevant time period, the
veteran should be afforded a VA
examination as necessary to determine
whether a current diagnosis of PTSD is
appropriate, and if so, whether that
diagnosis may be etiologically related to
the verified stressors. Only the
stressor(s) that are actually confirmed by
JSRRC should be considered.
The claims file must be made available to
the examiner in connection with the
examination. The examiner should note in
the examination report that pertinent
documents in the claims file, including
the information regarding stressor
verification, were reviewed in conjunction
with the examination. Any indicated
relevant tests must be conducted. The
examiner should provide an opinion as to
whether it is at least as likely as not (a
50 percent or greater likelihood) that the
veteran has PTSD as a result of his
verified in-service stressors. Any
opinions expressed by the reviewer must be
accompanied by a complete rationale.
3. After completing the above
development, the RO should readjudicate
the issue on appeal, considering any new
evidence secured since the January 2007
supplemental statement of the case (SSOC).
If this claim is not granted to the
veteran's satisfaction, send him and his
representative another SSOC and give them
an opportunity to respond to it before
returning the file to the Board for
further appellate consideration
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).